By Tammera E. Banasek

Dental and medical providers are required both legally and ethically to preserve patient confidentiality, but that privilege is not absolute. The American Dental Association's principles of ethics require:

"Dentists shall be obligated to become familiar with the signs of abuse and neglect and to report suspected cases to the proper authorities, consistent with state laws."

All 50 states have passed some kind of mandatory child abuse and neglect reporting law. Every state also has a hotline for reporting such abuse and neglect. Child abuse is generally defined as any recent act or failure to act resulting in imminent risk of serious harm, death, serious physical or emotional harm, sexual abuse, or exploitation of a child by a parent or caretaker for the child's welfare.

Designated professions are mandated by law to report maltreatment of children. The mandatory reporters are typically those who have frequent contact with children. Dentists and physicians are usually in this group of mandatory reporters. Some state laws may also include dental hygienists or assistants as well. The circumstances under which a dentist or other mandatory reporter must make a report vary from state to state, but generally that report must be made when the reporter in his or her official capacity suspects or has reasonable cause to believe a child known to him or her has been abused or neglected. Some state statutes require the reporter to know or suspect, which is a slightly higher degree of knowledge.

The patient confidentiality requirements do not apply and usually do not constitute grounds for failing to report where state law requires. Most states provide criminal penalties for failing to report abuse and neglect. For example, a pediatrician in Bridgeport, Conn., was arrested and prosecuted for failing to report the pregnancy of an 11-year-old girl. Some states also allow for the recovery of civil (money) damages if such a failure to report results in an injury or death of a child. For example, an emergency room physician treats a young child for an arm fracture and finds X-ray evidence of serious or suspicious prior traumatic injuries. Although abuse is suspected, the physician releases the child to the parent. Shortly thereafter, the child dies from a beating by that parent. Attorneys for the child's estate could and likely would sue the doctor for failing to take the appropriate steps to protect the child and report the suspected abuse.

Conversely, the mandatory reporter is typically immune from liability or prosecution if he or she makes a report in good faith as required.

Dental and ethical rules require that all dentists be informed. Every dentist who may treat a child has an obligation to educate his or her staff and create an office protocol so an appropriate report can be made, if necessary. First, you must know whether you are a mandatory reporter in your state. See www.childwelfare.gov for toll-free numbers for specific agencies in each state that receive and investigate suspected child abuse and neglect. Failing to report child abuse or neglect, if required, can result in potentially severe criminal or civil penalties.

Tammera E. Banasek is an associate with Alholm, Monahan, Klauke, Hay and Oldenburg L.L.C. in Chicago. She graduated from the The John Marshall Law School in 1993 and has defended dental professionals for more than 13 years. She may be reached at tbanasek@illinois-law.com.